Search and Seizure – consent — authority

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Wisconsin Court of Appeals

Criminal

Search and Seizure – consent — authority

An unidentified woman on the porch of the lower unit of a duplex does not have apparent authority to consent to entry of the upper unit.

“There is no evidence in the record before us that the woman actually used either the side entrance or the back stairs. The side entrance provided access to the back stairs, according to the record before us, which was the only means of access to the upper unit. The side entrance, as we have discussed, was actually two doors — a solid interior door and a full-size exterior security door with metal bars. There is no evidence in the record that the woman providing directions to the side entrance had a key to those doors, or that she ever used those doors to access the basement, much less to access the upper unit or the first-floor unit. The State has not established on this record by clear and convincing evidence that the woman who gave the police information about the back stairs as the way to access the upper unit also had the authority to consent to police entry to the only means of access to that upper unit. See Trecroci, 246 Wis. 2d 261, ¶¶6, 39-40 (In the context of an identifiable marijuana smell apparently emanating from an attic, the owner/occupant of a residential building did not have the authority to consent to a search of the locked attic rented to third parties but accessed from the same locked stairway as two other apartments.); see also Kieffer, 217 Wis. 2d at 542-47 (father-in-law had no actual authority to consent to search of loft area rented by daughter and son-in-law where there was no established mutual use of the loft area and where officers made no inquiries as to father-in-law’s access to the area).”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP72-CR State v. Guard

Dist. I, Milwaukee County, McMahon, J., Kessler, J.

Attorneys: For Appellant: Zaffiro, Richard L., Wauwatosa; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sarah K., Madison